On Monday, members of the Senate judiciary committee squared off over whether Attorney General Alberto Gonzales had to take an oath before testifying about National Security Agency eavesdropping. The committee eventually voted on it; in a vote that broke along party lines, it was decided that Gonzales didn't have to swear in. What are the rules on swearing an oath before Congress?
During committee hearings, witnesses typically take an oath at the discretion of the committee chair. An oath—similar to the one used in a court of law—is typically required during confirmation and investigative hearings. Attorney General Janet Reno, for one, was sworn in before a 1995 hearing on the ATF's actions during the Branch Davidian siege. When congressional committees investigated Watergate and the Iran-Contra Affair, witnesses were required to swear an oath as well. Monday's NSA hearings were about executive policy; they were not an investigation into the specific actions of the NSA. In an oversight hearing such as this, a policy witness is not usually asked to swear an oath before the judiciary committee.
Procedure also varies widely by committee. While the judiciary committee requires an oath only sometimes, according to the procedural guidelines of the Senate select committee on ethics, "all witnesses … [must] be sworn unless the Senator presiding decides otherwise." TheSenateforeign relations committee, by contrast, almost never requires one.
Decisions on whether to swear in a witness are generally made before the start of a hearing. If a committee member disagrees with the chair's decision, the member can appeal to the chair. On Monday, the judiciary committee battled it out after Democratic Sen. Russell Feingold questioned Republican Chairman Arlen Specter's decision not to swear in Gonzales. (The attorney general had volunteered to take the oath.) Senate committees have their own methods of settling disputes—the judiciary committee took a vote after Feingold requested it.
Sen. Jeff Sessions voiced an objection to Gonzales taking the oath, saying, "I think it's not necessary that a duly confirmed Cabinet member have to … give an oath when they are, in effect, under oath and subject to prosecution if they don't tell the truth." But the oath a Cabinet member swears when entering office does not include a provision to "tell the truth, the whole truth and nothing but the truth"; it states that the official will uphold the tenets of the office and the Constitution. A witness may not be criminally prosecuted for violating this oath of office, which does not have any provisions that govern testimony before Congress. An oath sworn during a previous hearing is also not applicable during future hearings.
If a witness is sworn in and lies to a congressional committee, he may be prosecuted for perjury. If the witness is not sworn, he cannot face perjury charges but could still theoretically be prosecuted for "making false statements." (See this Explainer for more details.)
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Explainer thanks Charles Tiefer of the University of Baltimore.